April 4, 1985

Honorable Alice Kundert 
Secretary of State 
State Capitol 
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 85-14

Moving expenses for a South Dakota employee who seeks and is hired to fill a vacant position at another headquarter duty station

Dear Miss Kundert:

You have requested an official opinion from this office based upon the following facts:

FACTS: 

The South Dakota Cooperative Extension Service (CES) has employee positions in every city in the state.  When a position becomes vacant (for example, a city agent position), the CES advertises the vacancy 'as an open and competitive position' and the employees of the CES are eligible to apply. Frequently, a vacant position is filled by another CES employee from another city, and this creates a new vacancy.

Based upon the above facts, you ask:

QUESTIONS: 

1.  Is an employee of the South Dakota Cooperative Extension Service (CES) who is hired to fill a vacant position at another headquarter duty station considered a 'state transfer' and entitled to a household moving allowance under SDCL 3-9-9? 

2.  Is that employee to be considered a 'professional recruitment' and subject to the provisions and conditions of SDCL 3-9-12?

IN RE QUESTION NO. 1:

SDCL 3-9-9 provides: 

The provisions of any other statutes notwithstanding, all full-time officers and employees, except elected constitutional officers of the state of South Dakota, may receive a household moving allowance as provided by this section. 

If a full-time officer or employee has been continuously employed by the state for a period of not less than six months and is ordered by the department, institution, board, commission, or other state agency to move from a headquarter duty station in South Dakota to another headquarter duty station in South Dakota, and if such transfer is made at the request and for the benefit of the State of South Dakota, the officer or employee shall be reimbursed for household moving expenses incurred as approved by the board of finance.  (Emphasis added.)

It is clear from reading SDCL 3-9-9 that an employee of the CES who is hired to fill a vacant position at another headquarter duty station is not a 'state transfer' who is entitled to a household moving allowance under that provision.  Pursuant to SDCL 3-9-9, before an employee may receive any household moving expenses he or she must have, among other things, been ordered by the agency to move from the present headquarter duty station to the new assignment.  Secondly, the transfer must be made at the request and for the  benefit of the State of South Dakota.

Under the facts you have presented, the CES employee is moving from one duty station to another pursuant to his or her own request, and not that of the state.  Thus, the move does not come about as a result of an order from the CES, but as a result of that employee submitting an application for the position at the new duty station. While the transfer may benefit the state as well as the employee, such a move is not made at the request of the state, nor is it necessarily made for the benefit of the state.  Under those facts, it is my opinion that the employee is not allowed household moving expenses under SDCL 3-9-9.

IN RE QUESTION NO. 2:

SDCL 3-9-12 provides: 

For the purpose of assisting in the recruitment of professional staff, it is declared to be the policy of the state of South Dakota that such persons may be reimbursed for moving expenses of their household goods only to the assigned headquarter duty station in South Dakota from such individual's residence in the same manner and amount as set forth in § 3-9-9 for transfer of state employees, but in no event shall such reimbursement be in excess of one month's salary.

Pursuant to SDCL 3-9-11 our legislature granted the State Board of Finance authority to adopt the necessary rules and regulations to implement § 3-9-9, and 3-9-12.

ARSD 5:01:07:07 sets out the conditions which must be met in order for a person recruited and hired to fill a position defined as a professional position to be awarded moving expenses.  Two pertinent conditions are as follows: 

    1.  A professional is an employee receiving a salary of $10,000 or more per year; 

    2.  The move of a state employee who has worked for state government six months or longer and is then hired as a professional by another state agency is a transfer move rather than a professional move.  (Emphasis added.)

ARSD 5:01:07:08 provides: 

Moving expenses for professional persons who are recruited may be reimbursed only when the individual is appointed to a full-time position by the appointment agency and when the expenses have been approved by an authorized officer pursuant to regulation or resolution of the agency's governing board or commission.

The above rules set forth the guidelines for determining whether an employee is considered a 'professional recruitment' subject to the provisions of SDCL 3-9-12.  If an employee receives a salary of $10,000 or more per year he or she  is deemed a professional.  Next, the recruited professional person must be appointed to a full-time position.  These appear to be the sole requirements for determining if an individual is a professional person authorized to receive reimbursements for their moving expenses.  Thus, any person who receives a salary of $10,000 or more per year, and has been recruited to fill a full-time position, may be reimbursed for his or her moving expenses when the expenses have been approved by an authorized officer pursuant to SDCL 3-9-12.  It should be mentioned that ARSD 5&:01:07:07(2) is not a decisive condition in this matter.  That condition deals with the state employee who has worked for state government and is then hired as a professional by another state agency.  We are not presented with that situation when a CES employee moves from one headquarter duty station to another.  He or she remains in the same position with the same agency.  The only difference is location.  Therefore, that subsection of ARSD 5:01:07:07 is not controlling.

Thus, in answer to your question, a CES employee who is hired to fill a vacant position at another headquarter duty station is considered a 'professional recruitment,' subject to the provisions and conditions of SDCL 3-9-12.

Respectfully submitted,

Mark V. Meierhenry
Attorney General